11/26/96 GENERAL SERVICE EMPLOYEES UNION v.

November 26, 1996

GENERAL SERVICE EMPLOYEES UNION, LOCAL 73, SEIU, AFL-CIO, CLC, PETITIONER-APPELLANT,v.ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD; BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, RESPONDENTS-APPELLEES.

Petition for Review of the order of the Illinois Educational Labor Relations Board. No. 94-CA-0016-C.

Released for Publication January 15, 1997.

The Honorable Justice Burke delivered the opinion of the court. Hartman, P.j., and Scariano, J., concur.

The opinion of the court was delivered by: Burke

JUSTICE BURKE delivered the opinion of the court:

Petitioner General Service Employees Union, Local 73, SEIU, AFL-CIO, CLC (Union) appeals from an order of the Illinois Educational Labor Relations Board (IELRB) affirming an administrative law judge's (ALJ) determination that the University of Illinois (University) did not violate section 14(a)(1) of the Illinois Educational Labor Relations Act (the Act) (115 ILCS 5/14(a)(1) (West 1993)) in discharging a University employee. On appeal, the Union argues: (1) the IELRB improperly held that the Union was required to prove anti-union motivation on the part of the University to establish a violation of section 14(a)(1); (2) the IELRB's opinion and order was irrational, arbitrary and incorrect as a matter of law; (3) the IELRB erred in holding that an employer's unlawful motive must be proven to establish an independent violation of section 14(a)(1) of the Act; (4) the IELRB "applied the incorrect test in this case even under the standard which it articulated" because the Union "was unable to present a case under section 14(a)(3) of the Act"; (5) a violation of section 14(a)(1) of the Act should be found when the proper test is applied; and (6) the IELRB's opinion and order were against the manifest weight of the evidence. For the reasons set forth below, we reverse.

Walter Duval (Duval), a medical records technician in the medical records department at the University, began working for the University in October 1988. In 1993, while on vacation, Duval sent a postcard to his coworkers which made an alleged derogatory reference to his supervisor, Adler Voltair. When Duval returned from his vacation, he was suspended as a result of the remark he made in the postcard. The Union subsequently initiated a postcard mail-in campaign in behalf of Duval to protest the University's suspension of him. A little over a month after returning from his suspension, Duval was on lunch break when Voltair allegedly attempted to run him over or hit him with his car. Duval subsequently filed a police report to that effect with Officer Barrera, a University police officer who investigated the matter, but later retracted the charge against Voltair.

In his report, Duval claimed that Voltair drove past him, made a U-turn, and proceeded to drive by him at a fast rate of speed. Kathryn O'Flynn, director of medical record services at the University and Voltair's supervisor, learned of Duval's police report and was aware of the postcard campaign. O'Flynn later said she did not have a reaction to the postcard campaign. According to Union representative Marsha Robinson, however, O'Flynn told her in a telephone conversation as follows:

"[Duval] had falsified a police report and she wanted him out of there; that he had to go; that she was fed up. And that this blue piece of paper [Union contract campaign update] that was going around talking about send [sic ] postcards, how could we uphold someone like that. It was just ridiculous. She wanted him out of there. She wanted him discharged. He had to go."

O'Flynn further stated at that time:

"He has got to go. I want him out of here. I talked with Personnel and we are going to discharge him. He is out of here. These postcards are just ridiculous. We don't have to tolerate this and we are not going to take it anymore. I want him out. Out. It is just ridiculous that you are all upholding him with these postcards."

Shortly after Duval retracted his statement to Officer Barrera, the University discharged Duval based on his "falsification of a police report." The Union subsequently filed an unfair labor practice charge against the University in behalf of Duval, alleging that he was discharged by the University "in retaliation for concerted, protective activity, engaged in by co-workers" in behalf of Duval (the postcard campaign) in violation of section 14(a)(1) and 14(a)(3) of the Act, which provides:

(a) Educational employers, their agents or representative are prohibited from:

(1) Interfering, restraining or coercing employees in the exercise of the rights ...

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